Abstract

This Article predicts trademark law’s impending neural turn. A growing legal literature debates the proper role of neuroscientific evidence. Yet outside of criminal law, analysis of neuroscientific evidence in the courtroom has been lacking. This is a mistake given that most of the applied research into brain function focuses on building better brands, not studies of criminals’ grey matter. Judges have long searched for a way to measure advertising’s psychological hold over consumers. Advertisers already use brain imaging to analyze a trademark’s ability to stimulate consumer attention, emotion, and memory. In the near future, businesses will offer a neural map unique to each well-known brand — a “neuromark” — into evidence. With the neuromark at their disposal, courts could potentially abandon the crude proxies for consumer perception that guide modern trademark doctrine. The current tests for trademark distinctiveness, likelihood of confusion, and dilution will all change, but will these changes be good for trademark law? By itself, measurement of consumer perception does not reveal how courts in trademark disputes should account for that measurement. New insights into the functioning of the consuming mind make a searching interrogation of the rationales behind trademark law more imperative than ever.

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